Wilderness Society v. Cohen

KERN, Associate Judge

(dissenting) :

Of each $285 which Wilderness, a nonprofit organization, received as payment for its horseback trip through Yellowstone Park, it retained $50 for its overhead and paid over $235 to one Glover, who provided the horses, equipment and food, and guided the travellers. Appellees advised Wilderness that they could not come well before Wilderness became obligated to Glover to pay for them. Had appellees at that time owed Wilderness any balance for the trip, I take it that the majority would recognize that Wilderness, the non-breaching party to the contract, could not have recovered more than $100,1 representing its total damages. Amis v. Air Conditioning Training Co., D.C.Mun.App., 65 A.2d 213 (1949).2

What concerns me is that solely because appellees happened to have paid the entire amount due (and as a result find themselves suing Wilderness rather than defending or counterclaiming in a suit *823brought by Wilderness for a balance due), the majority is willing to award Wilderness a windfall of $470, in addition to $100 damages the record shows it sustained. I cannot logically reconcile this difference in result. See Michigan Yacht & Power Co. v. Busch, 143 F. 929, 934 (6th Cir. 1906).

I believe that an application of sound contract law principles, as well as logic, requires an affirmance in this case of the trial court’s award of $470 to appellees and retention by Wilderness of $100. The Restatement of Contracts Section 357 (1932), adopted by this court in Bainum v. McGrady, D.C.Mun.App., 117 A.2d 462, 464 (1955), provides (footnote added):

(1) [wjhere the defendant [i. e., Wilderness] fails * * * to perform his contract and is justified therein by the plaintiff’s [i. e., appellees’] own * * * non-performance of a condition, but the plaintiff has rendered a part3 performance under the contract that is a net benefit to the defendant, the plaintiff can get judgment, except as stated in Subsection (2), for the amount of such benefit in excess of the harm that he has caused to the defendant by his own breach * * * if
* * * * * *
(b) the defendant, with knowledge that the plaintiff’s * * * non-performance of condition has occurred or will thereafter occur * * * accepts the benefit of it, or retains property received although its return in specie is still not unreasonably difficult or injurious.
(2) The plaintiff has no right to compensation for his part performance * * * if the contract provides that it may be retained and it is not so greatly in excess of the defendant’s harm that the provision is rejected as imposing a penalty. (Emphasis added.)

See also Amtorg Trading Corp. v. Miehle Printing Press & Mfg. Co., 206 F.2d 103, 105-106 (2d Cir. 1953). Wilderness failed to provide the trip for the appellees, but its failure to perform was justified by the wrongful refusal of appellees to accept performance. See 5 A. Corbin, Contracts § 1233 (1951); 6 Id., § 1264 (1962). Since I believe it clear that Wilderness has received a benefit greatly “in excess of the harm” appellees caused it, I would allow appellees to recover the “net benefit” to Wilderness of $470.4

The majority believes that a refund to appellees is barred by the contract between the parties. The provision permitting refund to one who cancels his reservation if his place were taken by someone else 5 was intended by its express terms to protect appellant after it had made final arrangements for “horses, food, and equipment” with its supplier. Wilderness had not made final arrangements with Glover when ap-pellees cancelled. “[F]orfeiture clauses are always strictly and narrowly construed and forfeiture of a right is avoided whenever a court can discern a rational basis for that result.” Neuffer v. Bakery and Confectionery Workers International Union, 113 U.S.App.D.C. 334, 339, 307 F.2d 671, 676 (1962) (Burger, J., dissenting); accord, Rush v. Kirk, 127 F.2d 368, 370 (10th Cir. 1942); In re Murray Realty Co., 35 F.Supp. 417, 419-420 (N.D.N.Y.1940). To permit appellant to retain ap-pellees’ full payment, which so greatly exceeded the loss it actually incurred as a *824result of appellees’ cancellation, would impose a penalty in the nature of a forfeiture, which Section 357(2) of the Restatement expressly rejects. I would affirm.

. Nor could it have retained, more than $100. See the discussion of Restatement of Contracts § 357, infra.

. A student contracted for a study course to be completed at home and then augmented by two weeks’ training in another city. He discontinued the course before undergoing the two weeks’ training and was sued for the balance of his payment for the course. We denied recovery because there was no showing that the plaintiff had spent or become obligated to spend money for that part of the course to be given away from his home.

.It is immaterial that appellees may be considered to have fully performed, because “the consideration due from the defendant [appellant] is something other than a liquidated debt [i. e., the trip to Yellowstone].” Restatement of Contracts § 350 & Comment b (1932).

. Where, as here, the return of money, and not specific property, is requested, the question of the difficulty of “return in specie” is not presented.

. There is considerable doubt that replacements could have been added because the Yellowstone Park trip was already oversubscribed when appellees cancelled.